J.C. Penney Company, Inc. v. National Labor Relations Board

Appeal from the United States District Court for the Southern District of Illinois. No. 95-CV-530-WDS William D. Stiehl, Judge.

Before BAUER, CUDAHY, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

ARGUED JUNE 2, 1997

DECIDED AUGUST 29, 1997

This appeal concerns J.C. Penney Company's petition for review of an order of the National Labor Relations Board ("the NLRB" or "the Board"), which found that J.C. Penney had violated sec. 8(a)(1) of the National Labor Relations Act ("the NLRA"). Specifically, the Board adopted the findings and order of an administrative law judge ("ALJ"). The ALJ concluded that a J.C. Penney supervisor threatened an employee with discharge because of her union sympathies and that J.C. Penney maintained a discriminatory policy which prohibited the posting of union materials on company bulletin boards and work carts that were otherwise available for general use by the employees. The Board filed a cross-application for enforcement of its order. We deny the Board's request to enforce that part of the order requiring that J.C. Penney cease and desist from threatening employees with the loss of employment because of their union activities. We grant the Board's request for enforcement of the remainder of its order.

Background

J.C. Penney operates a large Catalog Fulfillment Center ("the CFC") in Lenexa, Kansas. In early 1995, the International Brotherhood of Teamsters, Local Union No. 41, AFL-CIO ("the union"), began a campaign to organize the more than 1,000 employees who work at the CFC. Employee supporters of the union started distributing union materials in the CFC shortly thereafter. This case arose when a regional director of the NLRB issued a complaint in response to union charges that during the union's campaign, J.C. Penney violated sec.sec. 8(a)(1) and (a)(3) of the NLRA.

Diana Sanders Jaccard was (and, as far as we know, still is) a J.C. Penney employee. Because a wrist injury prevented her from performing her regular duties, Jaccard was given a temporary position at J.C. Penney's Central Warehouse Office, beginning in late summer of 1994 and scheduled to end in early 1995. Jaccard was a union supporter. On or about February 2, 1995, the union sent a letter to J.C. Penney stating that several employees, including Jaccard, supported the union's efforts to organize employees at the CFC. After her temporary position came to an end, Jaccard was placed on medical leave in March 1995. Eventually, Jaccard's medical restriction was removed, and she was reinstated in a new department with a permanent position and a higher salary.

Part of the reason for the NLRB's issuing a complaint had to do with an incident during Jaccard's tenure in the temporary position. Jaccard testified before an ALJ that on February 13, 1995, Mark Smith, a Central Warehouse supervisor, approached her and they discussed Jaccard's pending marriage. Joanne Wells, another employee, was also present. During the course of this conversation, Smith noticed that Jaccard was wearing a union button and stated, "Oh, you're for the Union." When Jaccard did not respond, Smith said, "I'm glad you got a husband." Wells turned to Jaccard and said, "Oh, you won't live long." Smith looked sharply at Wells and then walked away. After this incident, Jaccard stopped wearing any union buttons and instead put them inside or attached them to her purse. Before the ALJ, Smith denied that he ever saw Jaccard wearing a union button and that he ever made the statements. Wells did not testify. The ALJ found Jaccard's testimony to be credible. He concluded that Smith's remarks threatened Jaccard with discharge because of her union activities, in violation of sec. 8(a)(1) of the NLRA.

This appeal also concerns J.C. Penney's policy on posting union materials. J.C. Penney had a policy in effect since 1977 which forbade displaying personal items, solicitations, or anything else that was not company-sponsored or did not have a direct effect on work. J.C. Penney did allow its employees to post a company-approved newsletter, the Lenexa Board of Trade, which publicized employee personal items for sale.

The ALJ found that nonwork-related materials regularly appeared on some of the CFC's bulletin boards. Some of these postings were company-sponsored solicitations for the United Way and the March of Dimes charities. Others were personal and unapproved, including thank-you notes, party announcements, Christmas cards, a solicitation for maid service, and collections when employees died or were hospitalized. The ALJ found that at least some of the personal, unapproved materials remained posted for long periods of time. J.C. Penney considered union materials a solicitation. Supervisors removed union materials from bulletin boards, but, in at least one instance, J.C. Penney left untouched an adjacent noncompany posting.

The ALJ found that J.C. Penney's enforcement of its rule against unapproved postings was "spotty." The ALJ also considered J.C. Penney's admission that union postings would never be approved even though other personal postings regularly appeared on the boards. Under these circumstances, the ALJ concluded that J.C. Penney's policy of removing unapproved postings from its bulletin boards was "disparately applied to union materials." The ALJ found J.C. Penney in violation of sec. 8(a)(1) of the NLRA.

Employees at the CFC often personalized their carts with stickers, photographs, and other materials. On March 10, 1995, Operations Manager Tom Riechl removed two union bumper stickers from employee Paul Farris' work cart, but left untouched several nonunion stickers and family pictures attached to the cart. When Farris called Personnel Manager Jeffrey Sembler to complain, Sembler told Farris that he could personalize his cart with family pictures but that he could not have offensive pictures, cartoons or sayings. Farris was also instructed that employees were not permitted to put union stickers on their carts because the carts were company property, and union stickers constituted solicitation material. The ALJ concluded that J.C. Penney had permitted the decoration of work carts and that Reichl's removal of the union stickers and Sembler's affirmation of that action were discriminatory modifications of J.C. Penney's permissive practice toward work cart decoration. The ALJ concluded that J.C. Penney again violated sec. 8(a)(1) of the NLRA.

On November 9, 1995, management personnel and employee representatives held a meeting. Randy Heldenbrand, an employee representative, asked CFC Manager Frank Kemp why J.C. Penney had removed union materials from the cafeteria tables. Heldenbrand testified that Kemp responded that he did not have to provide an open forum for the union inside the CFC. Heldenbrand then inquired about a rumor that some bulletin boards for posting union materials would be available. Heldenbrand recalled that Kemp did not respond and went on to discuss another subject. Shortly thereafter, the minutes of the meeting were posted. The minutes of the meeting stated:

Q: Flyers were passed out this week concerning the union. Why did management pick them up? I was told it was against the law to pick them up.

A: We have easels to display union material as well as our response. One of the main reasons that we went to displaying information both ours and theirs on easels was to minimize the miscellaneous papers being posted and left laying [sic] around.

Heldenbrand testified that no mention was made of easels at the meeting. Kemp did not testify, but Sembler recalled that the question was asked and that Kemp stated that J.C. Penney generally picked up all unattended materials left on cafeteria tables.

Around this time, J.C. Penney began placing union materials on easels throughout the CFC. Usually J.C. Penney would post a union notice and would include its own position alongside the notice. The ALJ found that the easel postings were no defense to the unlawful removal of union materials from bulletin boards. The ALJ stated that J.C. Penney was welcome to display union materials and its response on easels, but that J.C. Penney's answer to Heldenbrand's question in the minutes implied that union materials were removed from the cafeteria and bulletin boards because easels were available. This left employees with the impression that the easels were the only proper means of circulating union materials at the CFC. The ALJ therefore found that J.C. Penney's announcement of its easel policy was a violation of sec. 8(a)(1) of the NLRA.

In a July 1, 1996 order reflecting his findings, the ALJ ordered J.C. Penney to cease and desist from maintaining or enforcing any rule or policy that discriminates as to the posting of union materials on bulletin boards or work carts that are otherwise available for general employee use or that implies that union materials will only be posted on easels. The ALJ further ordered J.C. Penney to cease and desist from threatening employees with the loss of employment because of their union sympathies. He also ordered J.C. Penney to cease and desist from, "in any like or related manner," interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by sec. 7 of the NLRA. Finally, the ALJ ordered J.C. Penney to withdraw and rescind any of its rules or policies (1) which discriminatively restrict its employees' use of bulletin boards or postings on work carts which are otherwise available for general employee use or (2) which imply that union materials will only be posted on company easels.

On September 30, 1996, a three-member panel of the NLRB considered the ALJ's decision, affirmed his rulings, findings, and conclusions, and adopted his recommended order. On October 24, 1996, J.C. Penney filed a petition for review, and on December 2, 1996, the NLRB filed a cross-application for enforcement of its order. The two cases were consolidated for purposes of appeal.

Analysis

We will uphold a Board order if there is substantial evidence in the record to support its findings of fact and if its conclusions of law have a reasonable basis in the law. Dilling Mechanical Contractors, Inc. v. NLRB, 107 F.3d 521, 524 (7th Cir. 1997); see 29 U.S.C. sec. 160(e), (f). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citations omitted). It is not our place to engage in our own fact finding or supplant the Board's reasonable conclusions "even though [we] would justifiably have made a different choice had the matter been before [us] de novo." Universal Camera Corp. v. NLRB, 340 U.S. 477, 488 (1951). However, "a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Id.

Section 7 of the NLRA provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 29 U.S.C. sec. 157. Section 8(a)(1) of the NLRA considers it an unfair labor practice for an employer to restrain, coerce, or interfere with employees in their exercise of the rights conferred in sec. 7. 29 U.S.C. sec. 158(a)(1). "Threats of discharge, discipline, plant closure or other reprisals against employees for engaging in union activity are unlawful and violative of section 8(a)(1) of the Act because these acts reasonably tend to coerce employees in the exercise of their rights, regardless of whether they do, in fact, coerce." Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1318 (7th Cir. 1989).

Whether a threat was made is a finding of fact within the Board's expertise. NLRB v. Champion Lab., Inc., 99 F.3d 223, 228 (7th Cir. 1996). In determining whether a statement constitutes a threat of discharge, we consider the economic dependence of the employee on his employer and the necessary tendency of the employee to pick up intended implications of the employer that might be more readily dismissed by a disinterested ear. NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). Context is a determinative factor in considering whether a statement is an implied threat. Champion Lab, 99 F.3d at 229. We must differentiate between a threat and an exchange which amounts to nothing more than "casual comment[s] made within the free flow of conversation between workers and supervisors." Id. (citing NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1266 (7th Cir. 1987)).

During the hearing before the ALJ, Jaccard was asked about the exchange between herself and Smith. She testified as follows:

Q: Now, after you began wearing this union button, Teamster's button to work, did any member of management ever talk to you about the button ...

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